tv Hernandez v. Mesa Oral Argument CSPAN February 28, 2017 11:30pm-12:36am EST
the family is suing the border patrol agent in u.s. courts in the case you have hernandez versus mesa, the supreme court will decide whether a mexican national can sue an agent of the u.s. government in civil court. here is the newly released audio recording of oral argument in the case from last week. it's an hour. >> you argument first this morning in case 1511 hernandez versus mesa. mr. hilliard. >> mr. chief justice, may it please the court, 15-year-old sergio hernandez was standing in mexico barely across the border unthreatening and unarmed when he was shot and killed by a u.s. border patrol agent standing inside the united states. this tragic case is one of the most simplest extra territorial cases this court will have in front of it for five reasons. first, all of the conduct of the
officer on u.s. soil, and the resulting injury is in close proximity then fourth amendment constraints on that officer should apply. >> that's a test that surprisingly fits the exact facts of your case. it seems to me the principles you're arguing for can't be so narrowly confined. and for example, how do you analyze the case of a drone strike in iraq? where the plane is piloted from nevada? why wouldn't the same analysis apply in that case? >> chief justice, if it was a drone strike, i'm assuming that it was probably military. i'm assuming that there was cooperation with other governments. here in our case. >> so if this were in your case somebody from the state national guard or whatever, then there would be a different result? >> well, if it was a state national guard, i'm not sure that they would be shooting across the border, your honor.
>> you can imagine a situation that is not precisely like the facts of your case where military officials may be involved. >> i can imagine that will scenario but that's not the purpose or the intent of this rule. the purpose and intent of our rule is simply to involve this court in addressing an ongoing domestic routine law enforcement issue along our southwest border. >> your brief excluded military personnel and intelligence personnel. your brief is limited to, as you said, civilian border patrol officers. so your drone example take you from your brief your answer is that's a military operation. >> that's right, justice ginsburg. and we also recognize. >> i understand that, but i'm trying to see what the logic was other than that yours happen to
involved a nonmilitary actor and my hypothetical involves the a military actor. under a bivens analysis, i'm not sure that that makes a difference. maybe there will be some defenses once you recognize the caution of action that have to do with the military operation but i'm not sure why you wouldn't have a cause of action under your theory. >> our theory is neent address the ongoing problem along the southwest border that has resulted in at least ten cross border shootings and six mexican national deaths and pre time the constitution according to the government turns off at the border even though all the conduct happens in the united states, i recognize that under the military situation, there are orders that may be being followed. here we have a rogue officer who actually is not following his own federal regulation wiz says he can't use deadly force without imminent peril. >> that isn't the question. >> the question that we is our
problem, but we have to have your help in solving it is you have a very sympathetic case. we write some words. and those words you're delighted with because you win. that isn't the problem. the problem is other people will read those words. and there are all kinds of things that happen, maybe military, maybe not. perhaps a foreign country with the collusion of people in our country sets off a drone. that's what the chief justice brought in, and are we in deciding for you, a, deciding as well that anyone who suffers a drone strike can come to new york and bring a law case? are we deciding that the matter is unclear so that when the proper authorities get advice from their lawyers over in the executive branch, they have to say we're confused? okay. so what are the words that we write that enable to you win
which is what you want and that avoid confusion, uncertainty, or decide these other cases the proper way? that's the question you've been given three times, and i would certainly like to know your answer. >> justice breyer, this rule does not involve drone strike. i do not intend to suggest that it should. this involves only. >> we know that part. the question is, what words do we write so that this opinion doesn't affect the drone strike which is what you seem to want. >> again, so the rule that we are suggesting has a close proximity element to it. it has all of the conduct of the united states of the officer on the united states soil shooting across the border. so. >> if we could take your test point by point and ask you whether it would apply in a
situation where each of those factors was a little bit different. so your client was 15. what if he was 19. would that be different? >> no, justice alito. of course, it wouldn't be different. >> what rule would apply there. >> the rule would apply if he was 19 standing unarmed in mexico when was shot. >> what if he was armed but he had his hands up. >> again, we're not asking for a win here. we're simply asking if the constitution applies and that he can, the defense of self-defense by the officer can happen at the trial court level. >> what if he wasn't in this culvert but he was 200 yards beyond in mexico. would it be different then? >> it may it be under the bu ma din element of nature of the site. so this culvert is unique. if the court, i would invite the court to look at exhibit 180 of
the petition's an ben dix which is a picture of the culvert. >> what if the officer was not standing in the united states but actually ran a short distance across the border into mexico? that would seem to be worse, wouldn't it? would you say the rule would be different there. >> justice alito, it may be because first the border patrol agents are strictly prohibited from crossing the border like federallies are strictly prohibited. >> suppose he violates that rule, he crosses into mexico and then shoots the mexican national. >> the rule would not apply but it doesn't mean it under the standard that there's not constitutional protections. he did not know where the line was? did he go in hot pursuit? was he called over by a federally. the specs of the facts would affect the decision of whether the constitution applies. under our proposed rule as mexico pointed out in its brief, there's been 243 shootings. along the boarder with the border patrol using deadly
force. ten of those across the boarder. >> i understand that, but as justice breyer said, we have to articulate a rule that applies. we can't just say that in that on the particular facts here, mr. hernandez, the petitioners have a bivens claim. it states a violation of the fourth amendment. we have to have a rule that can be applied in other cases. and i don't know what rule you want us to adopt other than to say you win. of course, that's what you need to do for your client. but you need to give us a principle that it workable. is your rule that if the u.s. agent commits on foreign soil an action that would be a violation had it occurred within the united states, there is a bivens claim and there is a fourth amendment violation. is that your rule. >> justice alito, no.
so our rule involves all of the conduct occurring on the united states side and i acknowledge that w as justice breyer said would be fleiss for our side but more porches the border patrol is 44,000 strong along our southwest border and only interact with mexican nationals. we've had ten shootings across the border. though we might get the w it will at least not turn off the constitution. >> mr. hilliard, your rule would be the same if this was the first time it happened. if it was one person and the other facts were the same. right? >> my rule may be the same but my response to the question wouldn't have as much meat on it because we're here after many of these shootings that occurred and we're here because the interaction of the border patrol in this area, the government has taken the position that on border, the constitution turns off if the deadly force goes across the border. >> anterior question.
it has been argued that the constitution is only for people who are within the united states. therefore, an alien injured abroad has no fourth or fifth amendment rights. how do you answer that? >> well, i this i that the bu middian made clear, justice ginsburg, that aliens abroad have constitutional rights, depending on whether or not there is a after the evaluation, whether functionally the constitution should apply. this court has. >> that was dealing with habeas. >> that was dealing with habeas burks the bu middian court did a full survey of the entirety of the extra territory cases and they said there's a common thread. and what this court does is it looks at where are we sending the constitution and what are we asking 0 it to do. and i acknowledge and recognize this court has already said it's not a worldwide constitution, but it has gone abroad many times depending on what it needs
to do and what it's being asked to do. >> mr. hilliard, i think you said what your rule is in a pretty clear way. you said essentially it's a border area. and the shot came from the united states. so that i take it is your rule. so it's interesting the harder is question and this goes back to the chief justice's question, why is that your rule? you know, what makes that confluence of factors different from everything else? >> justice change, the reason that's our rule is because the interaction at the border on our southwest border has resulted often in shots being fired across the border. it's not unique to sergio hernandez. >> you keep saying that there's a problem here and i respect that, but there might be problems in other situations, as well. there might be problems when u.s. officials go into a foreign
nation's territory. so that leaves me still uncertain why, i mean you're saying as a practical matter this is where the incidents are. but is that all you have as to why this is your rule? why the border cases are different? >> so using the framework of bu middian and the factors of bu middian and given that this fact pattern is unique to the case we're here about today but not unique to the situation on the border, you know, the bu middian factors are used to plug in the rule that we're asking for. for example, the bu middian factors are nature of the site, status of the person seeking the constitutional protection, importance of the right, so those factors we plugged into this rule to address not just this specific problem but in reliance on the bu middian
opinion which said there's a common thread on all these cases and it's a functional application, we took the four elements of the framework of bu middian and applied them into our rule. >> well, but one obvious difference with bu middian is in there you were dealing with an area subject to the exclusive control of the united states. here you're dealing with mexico. entirely different situation. >> mr. chief justice, i would i would acknowledge that you're right. we are bu middian is in cuba but it's basically as bu middian recognized united states territory. here you have a u.s. law enforcement officer who's 100% of his conduct is inside the united stateston jury and to sovereign united states property. no other government could control his actions but our government and while inside the united states under his own constitution which he has sworn to abide by, he shoots. you know, the hypothetical may.
>> stop you there. so is it anytime that the u.s. officer is in the united states that that satisfy the question under bu middian? >> no it, does not. >> it's because the injury occurs in a different jurisdiction, right? >> it's because the injury occurs in close proximity. and this is a unique area. again, i would invite the court to look at exhibit 180 of the appendix which shows this culvert does not delineate where the united states ends. >> i assume that's true of a lot of borders. >> and the reason that's important in regards to the truth of that statement is because the united states exercises some degree of control into the culvert and as michael fisher said in his testimony to congress, they project outwards from the boarder. >> does the government of mexico agree with that? >> the government of mexico agrees that their sovereign is violated when the united states shoots bullets into their land and shoots their citizens.
>> my question is whether the government of mexico greece with your statement that the jurisdiction of the united states extends beyond the mexican boarder. >> it was not that the jurisdiction extends beyond the border. it's that the control projects from our physical border as michael fish per, the head of boarder patrol said, outward. it's not the first or last line of defense. the government of mexico has not addressed his statement but as a fact along the entirety of the southwest border, the border patrol stays on the border and projects authority outward. >> can i ask about an anomaly created by your rule. i take it everybody greece if there were a texas state trooper who was involved in the exact same conduct that trooper you would not be able to sue that trooper. so why is it that bivens which is usually thought of as a more limited remedy than 1983, and why should you have this
situation where you can sue the federal agent but not the state agent? >> justice kagan, in all respects, except where the victim lied, this is a typical bivens case. you have a u.s. law enforcement exercising unreasonable force and sergio hernandez is in the group of victims that are injured as a result of excessive force. the issue is is where he fell and where he shot, does it take it out of his right to a bivens. >> well, i've waited while the rule was being discussed because that's important but as justice kagan's question indicates, whether or not there can and should be a bivens action is critical to your case. since 1988 this court has not recognized a single bivens action. we look for special considerations. you've indicated that there's a problem all along the border. why doesn't that the counsel us that this is one of the most sensitive areas of foreign awares where the political
branches should discuss with mexico what the solution ought to be. it seems to me that this is an extraordinary case for to us say there's a bivens action in light of what we've done since 1988 but we haven't created a single one. >> justice kennedy, there is no alternative remedy for the family. there has been 283 shootings and when those shootings with the border. >> that means it's a critical area of foreign affairs. >> we're not attacking the policy of the united states government in regards to mexico. in fact, the policy off the united states is a border patrol agent should not use deadly force without implement peril. >> the policy of the united states i suppose we can ask them, they're not going to give any compensation from a special bill from congress or an executor agreement. a serious injury goes unaddressed and if we assume
that the officer was completely at fault, and that there's really no defense, we don't know what the facts are but if we assume the facts most favorably to you, there should be some relief. but isn't this an urgent matter of separation of powers for to us respect the duty, the principal rule that the executive and the legislative have with respect to foreign affairs? >> justice kennedy, i would say it is an urgent mat of separation of powers but it would be the opposite. the fact pattern if the court may recall is officer maze had grabbed one of sergio's friends and had him by the scruff of the collar next to him in the united states. had he shot that boy, that would be a bivens claim. just inside the united states and the only thing the government can say is it implements foreign policy and national security in, that situation, you have taken bivens claims for the largest police forces in this country in the
area that they operate. the location of the boy in regards to being shot from the united states should not counsel hesitation. >> you want me to put down in my notes, the location of the boy is irrelevant to this case? >> that's what we're going to put in our opinion? >> you start with -- if all of the conduct happens inside the united states. and there's a close proximity border shooting, the constraints apply. to hold otherwise is to prevent bivens in the area of the border whether it's south or north of the line. if an officer stands in the same place, and shoots sergeo's friend right next to him, have you one bivens case, and one
nonbivens case. >> when i write the reason for that, i write the opinion just as you said it, when it's only 30 feet away, the bivens act and the fourth amendment apply. if it's 30 miles away or 300 miles, they don't. that's what you want me to write. the next sentence has to have the reason, why i drew that distinction that's what people are looking for. if you have anything else to say -- i would say, this is a good time to say it. >> my point is, the close proximity takes it away from your analogy. if all the conduct. >> that isn't the reason you normally can give in the opinion. i had a few problems with applying it across the board maybe i could. is that what i'm supposed to
say? it took away from the problems justice breyer had. of course you can't say that, what is it i can say. >> if i understand your question. the reason that bivens should be allowed, if all of the conduct happens in the united states is because the anominous -- >> all the conduct happens in the united states with the drones. >> it would be anomalous to say, if the border patrol agent shoots northwest and east there's a bivens case. with all due respect, it's not the same with the drones, there's no proximity. >> i want your reaction, all the action took place in the united states. but it took place at the border, not beyond the border, at the
border. the border is the river, we have a treaty that says the river. we also have a treaty that says the line will be down the middle of the culvert, and the culvert will be maintained by the united states and mexico. it has not taken place in a foreign country. it's taken place on territory that jurisdictionally is mexicos. you started talking about the curdillage. that suggests a house. then you started talking about cannon shots going off somewhere. you did research into this. now, if i want to say this is a special kind of physical place, what words do i use? >> i think justice breyer, if i get your question. in the middle of the river, according to the treaty is the
deepest trench of the middle of the river, there's no river here any more, it's simply a flat culvert. >> we're responsible for maintaining it with mexico and the reason we are maintaining it is because at one time the whole river and the line down the center are the boundary, and we don't want the river to jump its boundaries and create a new border. you explored that, and then i think you gave up on it, i would like you to tell me what you want me to hear about it. >> the case was used to show there's a substantive reasonable -- >> are you relying at all on -- i'm not sure you did in your brief, but there in tort law generally, when there's an act outside that causes injury inside, the regulating rule can
come from the place where the conduct occurred. so that act outside, injury inside, is a familiar category, in tort law. as i understand it, the regulating rule can come from either place, the place where the act occurs or the place where it's effect. >> that's right, and as a practical matter is, the mexican juris brief points out, there is no practical way for the courts of mexico to review this conduct, so i appreciate -- if i can get back to justice breyer's concern and inquiry, and that is, if all of the conduct happens in the united states, as a fact, there's some exercise of control at the border, if the injury occurs in close proximity
to that border, that's a rule that would be workable. it would take care of the issue of the entirety of the southwest border of the united states where the conduct continues to occur, even today. >> could i ask you to go back to justice okayingen's question, if the officer here was a state or local officer, would you be able to file a claim for damages in the united states in a federal court? >> the issue in that regard is what does jurisdiction mean under 1983. if you're not a citizen and not in the jurisdiction, are you precluded under 1983. the point i was trying to make is, there was some issue of control in the culvert, it's never been decided what jurisdiction is. >> paut that aside, let's assume this is in mexico, plainly in mexico, would you have a claim against a state or local officer? if not, isn't it anom house for us to say, that you have a claim
under bivens? >> the issue -- >> i'm sorry why con the it apply to the state officer. if it's a state officer that lives -- why couldn't the family sue that state officer, if if all the acts happened in the united states. but were projected injuries. we have council for officer mesa to tell us he did sue the officer in texas. he did the acts in texas. general jurisdiction.
>> justice sotomayor -- i apologize. justice sotomayor, i agree with you, but the issue under 1983 is citizenship and jurisdiction of where it occurred. if i take justice alito's hypothetical, there would be a statutory exclusion if he came into the united states or was within the control area. there would be a 1983 claim. >> how often do state offices act under cover of state law. outside, with an impact outside the united states. >> justice ginsburg, i've never heard of that, generally the interaction at the border is the border patrol with mexican nationals on the south and north side of our border it's
generally the border control. >> if there are no other questions, i'd like to reserve the rest of my time. >> mr. chief justice, may it please the court. the fourth amendment does not apply in a cross border shooting by united states federal agent the petitioner's claim was answered in verdugo. i don't think this court gets to the question of the functionali functionality. >> acting with the approval and cooperation of mexican officers. that's a quite a different case, isn't it. >> it is. however, in verdugo. the person claiming protection was in the united states. the act occurred in mexico. here we have mr. hernandez who
was seized in mexico. he was never in the united states. the border is very real and very finite, it's not elastic. >> i thought in verdugo, the question was a search that occurred wholly inside mexico with the cooperation of the with the cooperation of the mexican authorities. captions copyright national cable satellite corp. 2008